SOCIETY Divorce and forced separation of children from their parents

by Stephen Baskerville

News Weekly, April 25, 2015

Parents have the natural right to be with their own children, unless they are guilty of some egregious act.... Stealing children from their own parents has historically been considered one of the most inhuman acts of tyrannical dictators…. Slave owners sold the children of their own slaves to other men. Today we are appalled by knowledge of such inhumanity. — Bai Macfarlane, Mary’s Advocates

What would you do if I came along in the street and took your children from you? You would do everything physically in your power to defend your children. You would probably injure me and maybe even kill me to protect your own flesh and blood. And yet fathers are somehow supposed to walk away.— Matt O’Connor, Fathers For Justice

Dr Stephen Baskerville

The most destructive and dangerous injustice in our society today is the systematic seizure of children by government officials and the criminalisation of their parents. A parent today who has committed no legal infraction can have his parenthood criminalised entirely through the actions of others in ways that are completely beyond his control.

Few people to whom it has not happened realise how easily and how frequently children are taken from their parents with no grounds or allegations of wrongdoing.

“People who have not personally gone through divorce and custody ‘wars’ may believe that it would never happen to them or their children,” writes Anna Keller. “They believe that their own relationships with their children are inviolable; that their importance to their children or their value as loving parents could never be publicly or legally challenged; they believe that they would never be refused information about their children by their children’s school or doctors, or drive by their children’s house and be forbidden to see them or find that they don’t know where and with whom their children are.”

The separation of children from their parents for reasons that have nothing to do with the children’s wishes, safety, health, or welfare is now routine. Though the number of mechanisms by which this can happen is growing, the most common is involuntary divorce.

As family law now operates in the United States and elsewhere, one parent can have the other summoned to court and, without presenting any evidence of legal wrongdoing, request that he be stripped of all rights over his children and effectively ejected from the family, and in every case the judge will oblige. Government officials acting on their own can do much the same to both parents.

Only the most trusting marriages

can survive

The very words “divorce” and “separation”, now so common, carry connotations that are very different from the present reality, and the vast literature on divorce that continues to pour forth from the presses, both popular and scholarly, is full of highly misleading information. Modern divorce too often involves government officials evicting people from their homes, seizing their property, taking away their children, and incarcerating them without trial. Divorce today means the invasion and destruction of private life by the state.

Likewise, the term “custody” is not the right to parent one’s children, as is commonly assumed; it is the power to prevent someone else from parenting his children and to marshal the penal apparatus — courts, police, and jails — to ensure that he cannot engage in any unauthorised parenting. Custody is only partly about children, in other words; custody also confers power on grown-ups. Custody now includes the power to bring the penal system into the home to punish family members — not for legally recognised offenses but for ordinary family differences.

Throughout the U.S. and abroad, large numbers of fathers and some mothers are being criminalised and incarcerated for what begins as nothing more than a spouse’s hurt feelings. What we call winning “custody” means the power to turn family members into outlaws.

For centuries our legal order has been based on the principle that authority over children resides with their parents, unless the parents have done something to forfeit it. Yet that power has now been transferred to state officials such as family court judges and their clients in the bar associations, psychotherapy professions, and social work bureaucracies.

“Our society has chosen to leave all such family-role decisions to the free choice of the people until one of the parties decides to end the marital relationship and files that request with the government,” writes Wayne Anderson. “At that moment the government assumes control of family decisions and ends the free choice of the divorcing parents.”

This government takeover of the family was traditionally justified when both parents agreed to divorce or when one violated the terms of the marriage contract and incurred the legal consequences for doing so. What is innovative in “no-fault” divorce is that the government now assumes this control over the family and an innocent parent not by the mutual agreement of both parents but at the mere request of one.

Through “no-fault” divorce, one parent can now declare unilaterally that the marriage has “broken down” and petition the state to remove the other parent without that parent having committed any legal transgression. What the government then offers to the parent who invites its intervention is the promise that her invitation will be rewarded; the state will establish her as a puppet government, the state’s satrap within the family. This requires that not the faithless but the faithful parent be punished.

The divorce industry consists of a huge and largely hidden governmental machinery consisting of judges, lawyers, psychologists and psychiatrists, social workers, child protective services, child support enforcement agents, mediators, counsellors, and feminist groups, plus an extensive host of economic interests, such as divorce planners, forensic accountants, and many others. These officials and professionals invariably profess to be motivated by concern for the “best interest” of other people’s children. Yet their services are activated only with the dissolution of families and the removal of parents.

Whatever pieties they may proclaim, the hard reality is that they have a concrete interest in encouraging family break-up and virtually all their power and earnings derive from the harm that divorce inflicts on children. “Fights over control of the children,” reports one former divorce insider, “are where most of the billable hours in family court are consumed.”

The media generally reports on these phenomena with a series of clichés and euphemisms — “divorce”, “custody battle”, “fatherlessness”, “deadbeat dads”, “domestic violence”, “child abuse” and “parental kidnapping” — while ignoring the underlying legal framework that connects them all. We hear about the high rate of “divorce” but we are seldom told that the vast majority of divorces with children are the actions of one parent acting alone.

We hear of ugly “custody battles” involving “warring parents”, with no hint that most begin as unilateral child snatchings that are planned with the assistance of court officials and rewarded by the courts. We witness the official witch hunt against “deadbeat dads”, with seldom a word to the effect that none of these men have ever been convicted of anything, or that most were divorced over their objections and without grounds and therefore did nothing to incur “obligations” imputed to them that are often patently impossible to pay.

We are besieged with daily reports of “domestic violence” with little indication that almost none of it involves any physical contact. We hear harrowing tales of child abuse but not the fact that it is overwhelmingly committed by single mothers and their boyfriends once the father has been forcibly removed and is no longer able to protect his children.

We have been told that more than 2,000 child kidnappings occur in the U.S. every day and that they are overwhelmingly by a parent, but there is no indication that most are instigated following family court orders. We hear about fathers who “abandon” their children but not that virtually every one of these fathers is under a court order to stay away from them.

Contrary to popular perception and what limited media attention it does attract, the problem is much deeper than simply bias against fathers in custody decisions, though such bias certainly exists. Most people can probably understand and tolerate some discrimination against fathers when divorces are agreed by mutual consent.

What is happening in family courts today is entirely different. It is one thing to recognise that young children need their mother; it is another altogether to say they need her to have the arbitrary power to keep away their father. Yet current judicial practice allows her to do precisely that. Under the terms of no-fault divorce, she can have a half-dozen previous divorces, she can desert the marital home, she can abscond with the children, she can commit adultery, she can level false charges, she can assault the father, she can even abuse the children, and none of these (except the last, perhaps) can even be introduced as evidence in a custody hearing.

For a father the simple fact of his being a father will be used to keep him away from his children six days out of seven, deprive him of any decision-making role, and dissolve his marriage with or without his agreement.

For many, the key factor in our acceptance of mother custody is the perception that fathers are initiating or at least acquiescing in the dissolution of marriages. Among researchers, however, this assumption has long been known to be false. In the largest federally funded study conducted on issues divorced fathers face, Sanford Braver has shown that at least two-thirds of divorces are initiated by women, whether measured by official filings or surveys of couples.

Moreover, few of these divorces involve grounds, such as desertion, adultery, or violence. Most often the reasons given are “growing apart” or “not feeling loved or appreciated”. Other studies have reached similar conclusions.

It is difficult to overestimate the importance of this fact. All the hardships, indignities, and prosecutions fathers now endure might be understandable if, as is still popularly believed, it was they who were walking out on their families, giving legitimate grounds for divorce, or even agreeing to it. Understandably, Braver observes, “this belief appears to fuel much of the vindictiveness of gender-based divorce debates, since the logical conclusion is that society should find a way to punish divorced men for their escapades ... by imposing various sanctions”.

From the unchallenged scientific evidence, however, the vast majority of fathers and some mothers are the ones being abandoned — or perhaps more precisely expelled — by a divorce that is over their objections and over which they have no say. The regime engineered by the divorce industry is based on a legal anomaly whereby parents can be forcibly divorced and then blamed for the divorce that is beyond their control. Braver calls this the “dirty little secret” of modern divorce.

“Gender bias” is not an adequate explanation for why this is happening. Though the courts promiscuously invoke both traditional concepts about motherhood and modern ideas of women’s rights, it is really a question of money and power, specifically that of the lucrative divorce industry, which offers parents — usually but not necessarily mothers — a tempting package of financial and emotional incentives to file for divorce.

As one lawyer reportedly told a client who asked him to stop a divorce: “There’s too many people making too much money in the divorce business.” Family courts, in other words, far from providing a remedy to parental child-snatching, are almost certainly part of the problem. So willing are family courts to reward this practice that some parents describe the courts themselves as a legal child-kidnapping and extortion racket. From the perspective of the father whose children have been taken, a “gang of four” — the mother, two lawyers, and a judge — has colluded to kidnap his children and hold them for ransom.

“Rather than hold my wife accountable for kidnapping my daughter,” one father told a public hearing in Virginia, “the system was eager to reward her for it.”

In fact not only is the legal machinery an accomplice; in some ways it is the principal instigator. A mother who consults a divorce lawyer will be advised that her best strategy for gaining custody is simply to take the children and their effects and leave without warning. If she has no place to go, she will be told that by accusing the father of domestic violence or child abuse she can obtain a restraining order immediately forcing him out of the family home. She will also learn that not only can she not be punished for either of these actions, but they cannot even be used against her in a custody decision. In fact they work so strongly in her favour that failure to apprise a female client of these options may constitute legal malpractice.

Far from being punished for child-snatching and false accusations, then, the mother is certain to be generously rewarded.

“No matter how faithless,” writes Bryce Christensen, “a wife who files for divorce can count on the state as an ally.” Mothers who abduct children and keep them from their fathers, with or without abuse charges, are routinely given immediate “temporary” custody. In fact, this is only temporary if he is willing to pay to get them back. Once she has custody it cannot be changed without a lengthy (and for the lawyers lucrative) court battle.

The sooner and the longer she can establish herself as the sole caretaker, the more difficult and costly it is to dislodge her. The more she cuts the children off from the father, alienates them from the father, levels false charges, delays the proceedings, and obstructs his efforts to see his children, the more she makes the path of least resistance (and highest earnings) to leave her with sole custody. In short, the more belligerence she displays and the more litigation she creates, the more grateful the courts will be for the business she generates.

As for the father, any restraint he shows throughout this ordeal is likely to cost him dearly, as most discover too late. On the other hand, reciprocal belligerence and aggressive litigation on his part may carry enough hope of reward to keep him interested.

Revealingly, the latest wisdom counsels nervous fathers that the game is so rigged that their best chance is not to wait for their day in court but to imitate the techniques of mothers: if you think she is planning to snatch, snatch first. Then conceal, obstruct, delay, and so forth.

“If you do not take action,” writes Robert Seidenberg, “your wife will.” Thus we have the nightmare scenario of a race to the trigger, to adopt the terms of nuclear deterrence replete with the pre-emptive strike. Whoever snatches first survives.

Far from merely exploiting family breakdown after the fact, then, domestic relations law has turned the American family into a game of “prisoners’ dilemma” in which only the most trusting marriage can survive and the emergence of the slightest marital discord renders not absconding with the children perilous and even irrational. Willingly or not, all parents are now captives in this game.

That this is indeed the dynamic behind the divorce epidemic is further confirmed as the logic is taken to its macabre conclusions. Not only are mothers enticed into filing for divorce with financial and emotional incentives; in some cases, they are being forced into it with threats and actions against their children.

Mothers now report being told by social service agencies that they must leave their husbands or lose their children, even in instances where neither parent is charged with any wrong-doing. In short, state officials now possess the power to break up families by imposing divorce on happily married parents.

Stephen Baskerville, PhD, is professor of government at Patrick Henry College and author most recently of Taken Into Custody: The War Against Fathers, Marriage, and the Family. He is writing a book on sexual politics. The full version of the above article, with endnotes and references, originally appeared in The Family in America: A Journal of Public Policy (Rockford, Illinois: Howard Center for Family, Religion & Society), Vol. 27, No. 4, Fall 2013.